New York Family Law Blog

Published on: September 19, 2022

Appellate Division determined that child support payments may be suspended if the custodial parent unjustifiably prevented access to the child. Usack v. Usack, 17 A.D.3d 736 (N.Y. App. Div. 2005)

by Stephen Bilkis

Generally, child support and custody are two different issues. Parental access is not based on the amount of child support is paid or whether it is paid on time or is in arrears. This means that a parent who has been ordered to pay chid support cannot stop paying child support simply because they have not had access to the child. In Usack v. Usack, the Appellate Division was asked to review this general rule in circumstances where the custodial parent intentionally prevents the non-custodial, child support paying parent access.

Background

Plaintiff James Usack and Defendant Linda Usack were married for 20 years and had three children. Linda had a good relationship with the children. After Linda had an affair with another man, James filed for divorce. James told the children about the affair, and from that point on, the children’s relationship with Linda was strained. The Supreme Court of New York granted James custody of the children and ordered Linda to pay child support a portion of the uninsured medical expenses for all three children.

Published on: September 14, 2022

A family court can grant a protection order prohibiting a minor from contacting a child, even though the minor is too young for criminal prosecution. Emily K. v. Luis J., 997 N.Y.S. 2d 510 (2014)

by Stephen Bilkis

In New York, a family court proceeding, pursuant to Article 8, allows a petitioner, the opportunity to civilly address an action that would otherwise be a crime. A family court proceeding under Article 8 is entirely different from a criminal prosecution for the same types of allegations, or even the exact same incident. However, in a criminal prosecution, the case is brought by the District.

Background

Luis J., and the petitioner’s daughter were each 13 years old when the petition was filed. They had been in an on-and-off dating relationship for several years. The two were classmates in kindergarten and had an intermittent boyfriend-girlfriend relationship from fifth to eighth grade. Initially, the relationship involved handholding, kissing, texting, and phone calls. The daughter testified that by sixth grade, Luis J. was texting or calling several times a day and has become jealous, controlling, and isolating.

Published on: September 12, 2022

The ICWA is applicable to the adoption of a Native American child even if the child’s Native American parents do not participate in tribal life. In re Baby Boy C., 805 N.Y.S.2d 313 (2005)

by Stephen Bilkis

The Indian Child Welfare Act of 1978 (ICWA) was enacted in response to practices that separated large numbers of Native American children from their families and tribe. See 25 USC § 1901 et seq. It is common for representatives from the relevant Indian tribe to intervene in child custody proceedings involving Indian children. The ICWA established certain placement preferences for Indian children who, as in the case of In re Baby Boy C., are no longer in their parents’ custody.

Background

Defendant Rita C., a Native American member of the Tohono O’odham Nation tribe (Tribe), gave birth to Baby Boy C. in March 2004. The father, Justin W., was not Native American. Rita grew up in a tribal community but eventually left it and no longer participated in its political, social, and religious affairs. Her other children were not being raised in a tribal community.

Published on: September 7, 2022

New York Supreme Court considered a divorce petition even though a divorce was already granted in another state. Weiss v. Weiss, 29 Misc. 3d 1202(A) (2010)

by Stephen Bilkis

A divorce proceeding must be initiated in the state where at least one of the parties is domiciled. Not only must one of the parties be domiciled in the state where the divorce proceeding is initiated, the person must have met the minimum residency requirements.

In Weis v. Weis, because of there was a question related to residency requirements, the New York Supreme Court was asked to grant a divorce even though the other spouse had sought and was granted a divorce in another state.

Background

Published on: September 5, 2022

Appellate Division found that a trial court cannot confirm a custody order that was determined by arbitration. Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (2009)

by Stephen Bilkis

In Schechter v. Schechter, the court considered whether a religious arbitration tribunal could determine child custody and whether the Supreme Court could then confirm the arbitration decision.

Background

David Schechter, the plaintiff and Wendy Zehava Schechter, the defendant entered into an agreement pursuant to which they agreed to arbitrate all marital issues between them before a rabbinical arbitration tribunal, the Bais Din. The Bais Din wrote a decision, awarding the parties joint custody of the couple’s 14-year-old daughter. David filed a motion to confirm the arbitration agreement before the Supreme Court, Nassau County, the appropriate trial court. Wendy consented to the trial court confirming the award with certain exceptions.

Published on: January 21, 2022

A fault-based divorce should not be granted without sufficient proof of constructive abandonment. Molinari v. Molinari, 2007 WL 1119894 (Sup. Ct. N.Y. 2007)

by Stephen Bilkis

Fault divorce is granted when one spouse proves that the other spouse did something which resulted in the failure of the marriage. Under New York Domestic Relations Law, grounds for fault-based divorce include:

Cruel and inhuman treatment. DRL §170.1
Abandonment for a continuous period of one year or more. DRL §170.2

Published on: January 3, 2022

New York recognizes the same-sex of marriage validly entered into outside of New York. Beth R. v. Donna M., 853 N.Y.S.2d 501 (2008)

by Stephen Bilkis

At the time that this case was decided, New York did not recognize same sex marriage. The law changed on June 24, 2011. Before that time, it was common for same sex couples to get married outside of New York in jurisdictions that did recognize same sex marriage. Just like with any marriage, when same sex relationships dissolved, legal questions related to child custody and child support had to be resolved. In Beth R. v. Donna M., the Supreme Court of New York was asked to determine whether New York recognizes same sex marriages validity entered into outside of New York and what the rights and obligations are of the parties regarding child custody and child support.

Background

Plaintiff Beth R. and Defendant Donna M., both residents of New York, met in 1999 and soon thereafter entered into an intimate relationship. The moved in together in 2002. In 2003, Donna became pregnant through artificial insemination.

Published on: April 20, 2020

Separation and Property Settlement Agreement Prepared by Mediator Was Not Unconscionable- Irizarry v Hayes, 2020 NY Slip Op 50217(U)

by Stephen Bilkis

In this case the Supreme Court considered whether the terms of a separation agreement prepared by a non-attorney mediator were unconscionable and as a result should be voided.

A separation agreement is a document agreed to by a husband and wife in which they agree to the conditions related to how they are going to live separately, such as property division, spousal maintenance, child custody, and child support. While a separation agreement is not always a precursor to a divorce, it can be. In fact, when filing for a divorce in New York, you must state the grounds for the action. One of the possible grounds is that the couple has been separated pursuant to a separation agreement. According to Dom. Rel. Law §170 (6), if a couple signed and notarized a separation agreement, are not living together, and have abided by the terms of the agreement, then they would have grounds for divorce.

In this case Irizarry v Hayes, the couple married in 2008 and had one child. A prenuptial agreement was drafted. Both parties were aware of its terms and agreed to them, but only the husband signed it. As a result, the prenuptial agreement was not enforceable. Several years later the couple experienced problems. After meeting with a mediator, the couple signed a separation agreement in 2016. In the agreement they acknowledged that they were encouraged to seek the advice of independent counsel, that they had the opportunity to seek independent counsel and financial advisors to review the agreement, and that by signing it they agreed to file an uncontested divorce action. The husband then filed an action for an uncontested divorce, and in her answer the wife consented to the uncontested divorce. The wife also stated in the answer that she “waives her right to any additional equitable distribution of marital property insomuch as all properties ever jointly owed, shared or enjoyed, have been distributed between the parties voluntarily prior to the commencement of the action by and through their Separation and Property Settlement Agreement.” The couple received a judgement of divorce.

Published on: April 13, 2020

Despite Child’s Wishes, Non-Custodial Father Granted Visitation- Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellate Division examined whether the family court considered the 14-year-old child’s wishes when granting the father visitation.

In making decisions about custody and visitation, the Family Court’s primary concern is to do what is in the best interests of the child. The determination of what is in the best interests of the child requires an examination of a number of factors. One factor is a rebuttable presumption that it is in the child’s best interest to have a relationship with both parents. In other words, unless there is convincing evidence that it would not be in the best interests of the child to have visitation with the noncustodial parent, the court will allow it. For example, if there was evidence that visitation would result in the child suffering serious emotional harm or physical harm, then the court would not order visitation.

If the child is old enough, the court will also consider the wishes of the child. In this case, the child, a 14-year old girl, was interviewed in camera. It appears that the child did not want to spend time with her father, not because she was concerned that he would harm her, but because she did not have a relationship with him. He was basically a stranger to her and she had no emotional bond with him.

Published on: April 6, 2020

Appellate Division Reversed Family Court Decision Denying Mother’s Request for Visitation Modification- Matter of Jessica D. v Michael E.2020 NY Slip Op 02133 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellate Division reviewed an order of the Family Court of Schenectady County dismissing a mother’s motion to seek visitation with her child. The Family Court’s decision was based on two factors: the report of the forensic evaluator and the mother’s emotional outburst during the hearing.

In Matter of Jessica D. v Michael E., the father of a child born in 2007 was in 2008 granted full legal and physical custody based largely on the fact that the mother was struggling with drug abuse. In the same order, the mother’s visitation was suspended pending an application to reconsider such order. In 2016, the mother, who had not seen the child in several years, commenced a modification proceeding in Family Court seeking visitation with the child. A hearing was held in 2018 during which the mother was the only witness to testify. A court-appointed forensic evaluator was admitted into evidence. After the hearing the Family Court denied the mother’s request for visitation stating that it would not be in the best interests of the child. The mother appealed.

In New York courts have determined that generally it is in the best interests of a child to have a relationship with both the mother and the father. Both parents have a right to have access to their child. When making custody the decisions, taking many factors into consideration, courts seek to come up with an arrangement that gives both parents significant access to the child. A court will deny access if it determines that allowing access would place the child in risk of physical harm or serious emotional harm. In the case where a parent is battling drug addiction, has no stable place to live and no job, the court will not allow visitation as that parent would not be able to provide a safe environment for the child. However, a court will consider modifying a custody arrangement if there has been a significant change of circumstances since the original custody order.